Hadiya and ‘Love Jihad’ : It is not a simple case of ‘free will’

The “Hadiya Love Jihad” case has raised many questions among the Indian intelligentsia. Can court govern our free will on whom to marry? Can court rule on which religion we chose to profess? Should the court tell us who we should live with? How is it that the court can decide who we can meet and who we can not?

It is being seen by many as judicial overreach into citizen’s free will on marriage and religion, guaranteed by article 15 and 25 of the Indian Constitution, which are fundamental rights of every citizen.

Can courts really go so wrong in interpreting and following the constitution? Do our Twitter activists know about the case better than the judges?

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It is understandable that one rushes to make right noises over free will and freedom of religion over the issue, but it is important to look at the case with its context and background, not as an isolated case of court annulling an inter-faith marriage, to make an informed decision.

A brief history of the case tells us that Akhila, the only daughter of ex-serviceman Akhil Asokan, a resident of Kottayam, Kerala, went to Salem, Tamil Nadu to pursue Bachelor of Homeopathic Medicine and Surgery (BHMS) in 2015. On 6th January, 2016, Akhila went missing from a house in Salem, where she was staying with her friends Faseena and Jaseena. Her father filed a missing complaint with police where he accused her room-mates and their father Aboobacker. Thereafter, when Akhila could not be traced, Asokan filed a Habeas Corpus in Kerala High Court, following which Akhila appeared in the court on 19th January, 2016.

There Akhila, now Hadiya, confessed to have converted to Islam out of her own free will, “impressed” by her room-mates’ way of living, prayers and “good character”. She even produced an affidavit where she said she was accepting Islam out of her free will with no coercion. Thereafter, she stayed in an Islamic study centre named “Sathya Sarani” and got enrolled as a student. She stayed with a PFI (Popular Front of India) member Sainaba.

After her affidavit, Ashokan’s petition was dismissed. However, Ashokan filed another petition after 6 months, where he alleged that efforts were being made to transport his daughter out of the country. The court passed an interim order, asking police to ensure that Akhila/Hadiya is not taken to a foreign land. Meanwhile, Akhila had been moved from Sainaba’s residence to an undisclosed location.

Now, while the case was going on, court directed the police to look at the role of Sainaba and Sathya Sarani in illegal conversions while ascertaining how Akhila is maintaining her and her source of income. In the meantime, on 21st December 2016, she appeared with someone called Shafin Jehan, whom she claimed to be her husband.

Among the 6 respondents in the case, Shafin Jehan was nowhere in the picture. They also produced a questionable marriage certificate, and claimed that they have got married which was attended by close relatives from both sides. However, nobody from Akhila’s side, not even her parents, were aware of the marriage. Moreover, “Thanveerul Islam Sangham”, which issued the marriage certificate has no authority to issue any such certificates. The court observed:

“The certificate is seen to have been issued by the Secretary of an organization by name Thanveerul Islam Sangham, Kottakkal, Malappuram District. We do not know what is the organization that has issued the certificate. It is not clear whether it is even registered.Whether it is only a paper organization alone, also requires to be ascertained.“

The court was not even sure of the identity of the names that appeared on that certificate. When Akhila converted to Islam, which doesn’t have any documentary proof, she assumed the name “Aasiya” through an affidavit. Later on her writ petitions, she called herself “Akhila Ashokan @ Adhiya.”

“Though it is repeatedly stated that Ms. Akhila has got converted to the Islam religion, there is no document evidencing such conversion on record. The name which she is alleged to have chosen, according to an affidavit executed by her before Adv.Devy A.C., Advocate and Notary on 10.9.2015 is ‘Aasiya’.

In W.P.(Crl.) No. 25 of 2016 she has sworn to affidavits describing herself as Akhila Ashokan@ Adhiya. In this writ petition, in her affidavits, she describes herself as ‘Akhila Ashokan @ Adhiya’.”

However, she comes across as Hadiya in the questionable marriage certificate that she produced.

“In the alleged marriage certificate issued by Thanveerul Islam Sangham dated 20.12.2016 produced by the Senior Government Pleader along with a memo dated 19.12.2016, her name is shown as Hadiya, D/o. Akhil Asokan. It is clear from the above that, even regarding the identity of Ms. Akhila, there is no certainty.”

Hadiya’s husband Shafin Jehan’s radical inclination is evident from his Facebook postings as noted by the court. He has criminal background and had cases registered under IPC section 143, 147, 341, 323, 294(b).

The questionable marriage certificate, the issuing authority being a non-authoritative institute to issue such certificate, court being kept in dark about the marriage, the criminal antecedent of Shafin Jehan and clear intention of taking Akhila to Gulf after marriage are the factors the court considered in its wisdom before it annulled the marriage. Here is the full judgement of the case [pdf], which observes:

“The marriage was conducted in a hasty manner with the object of overreaching the jurisdiction of this Court with the object of transporting her out of India. Shafin was only a stooge who has been assigned to play the role of going through a marriage ceremony.”

So before outraging on how courts can ‘undo’ a marriage, do consider that it’s a court of law, where material evidences are admitted, not a news studio where passionate rhetoric aimed at virtue signalling can clinch the deal for you. There were just too many reasons why the High Court ‘annulled’ the so-called marriage:

The marriage certificate was not issued by competent authority

Names on the questionable ‘marriage certificate’ were not matching with real names

Court was kept in dark about the marriage even though a case was going on

Now here comes the question of free will. Given that Hadiya had submitted an affidavit that she is accepting Islam in her free will, should the state interfere in how she decides to live her life? Looking at isolation, absolutely no. However, looking at the matter in its entirety, the following questions arise:

Today she says she wants to complete her studies. But she left her studies midway to join a 6 month Islamic course which she continued only for 2 months.

The court trusted Sainaba as the guardian of Akhila. She should have at least informed the court that Akhila’s marriage is being considered. But she didn’t even inform her natural guardians i.e. her parents who are alive.

Shafin Jehan had connection with someone called Mansy Buraqui, who also belonged to PFI and was arrested by NIA for having connection with ISIS, beside Shafin Jehan himself has criminal charges on him. Shafin Jehan is also part of many WhatsApp group which are Islamic fundamentalist in nature.

In a similar case, another girl from Thiruvananthapuram Nimisha, had accepted Islam and became Fathima and married Isa, supposedly out of her free will. The court had dismissed her mother’s petition and later the girl with her husband left to Afghanistan to join ISIS.

Shafin had expressed interest in taking Akhila to Gulf, where he claimed to have find a job and given there was a confusion on the real name of Akhila/Hadiya/Aasiya, it would have become impossible to even trace her out had she been taken out of India. There are reports of girls taken out of the country after such conversions, having become untraceable.

An observation by the court

These cases are not new to Kerala. In fact, forcible conversion by radicalising young minds is so rampant in Kerala that the High Court had asked government to frame suitable laws to stop “Love Jihad”.

Based on the history of this region, precedents and unanswered questions in this particular case, it will be foolish to look at the matter as a case of a girl marrying to an young man of another faith out of her free will. The matter is linked with internal security, and the courts are assessing all aspects.

One really has to be a fool to believe that an inter-faith marriage (well, technically it is not inter-faith when one of the adults convert and accept the same faith) is being questioned by the courts. There are tonnes of such marriages happening all around the country and courts are not bothered. This goes beyond the purview of freedom to practice one’s religion and free will.

No one (among those being heard by the Supreme Court, where lawyers like Kapil Sibal are arguing for Hadiya, who claims to earn 2000/- a month as house surgeon but is able to get Sibal and senior lawyers like Indira Jaisingh to argue for her) is objecting to an inter-faith marriage or free will. It is NOT the marriage that is being questioned but the consequences of one’s actions that is being looked at.

It is not a singular event. There is whole set of grey areas and precedents that has to be looked at. Recently, there was an intel report that ISIS may try to poison Sabrimala pilgrims by poisoning water in railway stations in Kerala. Kerala police has said that about 100 people from Kerala have joined ISIS over the years. Her husband and her former guardian Sainaba are PFI members which is believed to be the reincarnation of the banned Islamist outfit SIMI. With this background, the Kerala High Court noted that, “In the present state of affairs, it is absolutely unsafe to let Akhila [be] free to do as she likes.”

Of course, free will is paramount but so is national security and internal security. Remember that even ‘preventive detentions’ technically go against the principle of ‘free will’ and liberty. However, our laws allow that and governments have used such laws more often than not. In fact, our activists themselves demand such restrictions to be imposed on various occasions.

If your free will has consequences on the national security, then sorry, your free will can not be yielded to — that’s how it is right now in India and many countries abroad, including in the US, considered to be the best when it comes to individual freedom and liberty. However, the matter is sub-judice and I will not like to pass a judgement. The court in its wisdom has asked NIA to look into the matter and I believe it is a step in the right direction.

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